As you will be aware, the second reading debate of the Defamation Bill 2012 is scheduled to take place tomorrow (Tuesday 12th June) in the House of Commons. I hope you will be in attendance, and will express concerns about the limitations of this Bill.
As Simon Singh vs British Chiropractic Association demonstrated, (one of) the reason(s) why our libel laws need reforming is to protect the individual, expressing informed opinion on matters of public interest, from organisations or corporations making unsubstantiated claims as to the efficacy of some product/treatment, etc. Rather than accept an offered right-of-reply opportunity to cite the evidence in substantiation of its claims, the BCA, because it couldn’t, refused, and instead attempted to sue Singh. Fortunately, Singh, with an upsurge of support, was able to stand his ground. However, it is likely that (a similar article by) someone less capable would not have prevailed.
The Bill as it is suggests that, if something akin to Singh’s article was in future published in a peer-reviewed scientific journal, it would be now insulated against libel. However, it is still the case that, were it to be published by an informed public opinion holder operating outside academe, say in a national newspaper, or in a blog, he/she remains vulnerable. (As I read Section 5 of the Bill, the blogger is afforded little, if any, protection by his/her platform provider.)
This country’s libel laws have been ripe for abuse because they allow for corporations and organisations to bring libel actions because they seek to bring about retraction and stifle open debate – ie, censorship (through financial threat that the individual defendant is unlikely to be able to meet). This Bill as it stands does not provide better protection for the honest individual from such bullies. And, according to Section 1 Serious harm:
‘A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.’ (My emphasis in bold.)
Thus, the plaintiff still does not have to demonstrate any actual overt harm; but can bring a case based merely on prediction that it is likely to, and the onus remains on the defendant, even though there is no harm being ‘suffered’.
I am also concerned about a point in Section 4 Responsible publication on matter of public interest:
‘(2) … in determining… whether a defendant acted responsibly in publishing a statement the matters to which the court may have regard include (amongst other matters)–
(i) the tone of the statement.’ (My emphasis in bold.)
This requires clarification, as it is wide open to misinterpretation and abuse.
If this Bill privileges scientists’ opinions in academic journals, whilst limiting them (and anybody else’s) in other public fora, it does not go far enough. In fact, it could even be regressive.
May I kindly draw your attention to the following briefing note, produced by The Libel Reform Campaign:
and ask you to kindly consider the points therein, and argue the case for an effective Defamation Bill that will protect the interested citizen (scientist/journalist) who seeks to venture informed honest opinion in the public interest?
With thanks for your attention,